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February 5, 2005

Another perspective on Justice Ginsburg's switch

I have done some prior commentary here and here about Justice Ginsburg decision to "switch teams" on the right and remedy questions in Booker. And I was especially pleased to receive some new insights on this issue from an e-mail sent to me by Professor Ronald Levin. Here is the text he has allowed me to share:

You will recall that the Justices disagreed as to whether the remedial reasoning employed by Justice Breyer could properly be called severability analysis at all. What he actually did was to use remedial authority to remake a statutory scheme in order to bring about the result that Congress supposedly would have wanted if it had foreseen a constitutional problem with its handiwork. But he didn't actually "sever" some provision as unconstitutional. I have to agree with Justice Stevens that this device has not usually been called severance in the past. Whatever you want to call it, however, the technique has significant case law support. There is also a law review literature.

In fact, I can easily point you to the single most comprehensive and incisive law review article ever written on the subject. It is called "Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation," and it was published at 28 Clev. St. L. Rev. 301 (1979). The author of the article was a Columbia Law School professor who based her analysis on her experience in litigating sex discrimination cases in the Supreme Court. In these cases, after showing that a given statute was tainted with sex discrimination -- or, to use the term she introduced, gender discrimination -- she had to address the question of whether the statute in question should be extended to include both men and women, or should instead be nullified so that it would apply to neither. Although her position as an advocate had been to support extension in the cases she had handled, she made clear that the answer in a particular case should be pragmatically determined and situation-specific. But her bottom line was clear: "The courts act legitimately, I am convinced, when they employ common sense and sound judgment to preserve a law by moderate extension where tearing it down would be far more destructive of the legislature's will." (p. 324)

Not long after writing the article, this professor became a judge on the D.C. Circuit. And, as a judge, she sometimes went out of her way to rely on this same line of cases -- even where her panel found that a particular statute that was under challenge wasn't unconstitutional in the first place (and where, therefore, she did not actually need to discuss what remedial consequences would have ensued if she had found a violation after all). Well, she's no longer on the D.C. Circuit, but I'm sure you've long since figured out what I'm driving at here. In much the same way that Justice Breyer's inclination to preserve the vitality of the Guidelines in some fashion is unsurprising, once you know his professional history, Justice Ginsburg's inclination to support remedial creativity in Booker is unsurprising, once you know hers.